Burden of Proof

By Ken Olsen

Oct 28, 2011Oct 28, 2011

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Saturday, August 1, 2009

Leroy Comer’s 21-year battle with the VA disability-claims system comes down to about $30,000 in benefits – less than $1,500 for each year of denial, delay, appeal and remand. Comer wasn’t after money when he filed his first claim in 1988. He simply wanted help with the severe PTSD that followed him home from Vietnam, thwarting his attempts to keep a job and maintain a family. His attitude is typical of more than a half-million men and women with claims meandering through the VA bureaucracy. They simply want help making the transition from military service to civilian life, from wounded warrior to disabled veteran. Many spend years pursuing their cases through one of the most complicated government systems ever created. It shouldn’t be that difficult, nearly everyone agrees. “We end up approving at least a portion of more than 90 percent of the claims once they get through the process, which suggests something is fundamentally flawed,” says Linda J. Bilmes, a government finance expert at Harvard University’s Kennedy School of Government. She has studied the VA claims system extensively, identifying an essential problem: the process itself ranks higher than any other consideration. Instead, she says, “the objective has to be making people’s lives better by approving claims.” Getting there means more than a system overhaul. It also requires an attitude change, according to veterans advocates in Congress. “We want to get the message to all in VA that they are there to help the veterans,” says Sen. Daniel Akaka, D-Hawaii, chairman of the Senate Veterans Affairs Committee. Case in point: “If the government had just shown Leroy Comer the way to get the benefits he was clearly entitled to, this would not have gone on for 20 years,” says Edward Reines, one of two attorneys who represented the Vietnam War veteran in a final attempt to get a fair hearing for his case. “Thousands of dollars of (VA) processing time went into this.” The Final Stand. First diagnosed with PTSD in 1988, Leroy Comer spent more than 10 years battling to get VA to acknowledge that his illness was connected to his tour in Vietnam. He finally succeeded when the Board of Veterans Appeals ordered a reassessment of his case in 2001. Comer then spent most of another decade attempting to get a few hundred dollars a month in retroactive compensation for the errantly denied PTSD claim. By the time he reached the U.S. Court of Appeals for the Federal Circuit last year – last resort for veterans before the U.S. Supreme Court – Comer was seeking an additional five years of retroactive compensation because, in 2004, a VA doctor concluded his PTSD prevented him from holding a full-time job. That request for retroactive compensation also failed because Comer didn’t realize he was filling out the wrong paperwork. VA didn’t volunteer that detail. Furthermore, VA successfully persuaded a lower court that it wasn’t required to inform Comer he had to file a separate claim for retroactive compensation, because the Disabled American Veterans had written a solitary letter of support on his behalf. That 2003 letter, filed long after Comer started his struggle with the VA bureaucracy, was equivalent to full legal representation, the Court of Appeals for Veterans Claims ruled. The court rejected Comer’s argument that he was entitled to leeway for not knowing the intricacies of VA’s complex regulations, the sort of deference that VA is legally required to give those who represent themselves – as the combat veteran had been doing for 20 years. Comer realized he had one last chance. He hand-wrote a two-page letter to the Federal Circuit Court, a specialized branch of the federal judicial system that primarily deals with patents, international trade, government contracts and veterans’ cases. “I asked them to grant me due process,” Comer says. “I didn’t know what else to do.” Edward Reines and Dion Messer did. Intellectual property attorneys for the law firm of Weil, Gotshal & Manges, they routinely deal with this particular federal court. Comer’s case first came to the attention of Reines – who helped start the Federal Circuit Bar Association’s pro-bono program for veterans – in February 2008. “Mr. Comer’s appeal caught my eye because of the combination of his perseverance in fighting the legal system, despite his severe disabilities, and the potential the case had to help so many other disabled veterans in need,” Reines explains. “The government’s stubbornness and refusal to follow the law did not sit well with me, either.” Reines contacted Messer, who practices in Austin, Texas, because Comer’s last known address was the tiny town of Crockett in that state. After searching, they found him hospitalized in Waco. Despite an earlier bad experience with a law firm that briefly represented him on a contingency basis, Comer was happy to see the pair. “I knew I needed help,” Comer says. “I wasn’t too skeptical since they were doing it pro bono.” Messer and Reines convinced the court to allow them to file a new appeal and give them more time to prepare. When the court finally ruled, nearly a year later, Comer won a sweeping victory. U.S. Circuit Judge Haldane Robert Mayer – a decorated Vietnam War veteran – issued a stinging rebuke to VA in January, in a decision that will affect hundreds of thousands of cases. “The VA disability compensation system is not meant to be a trap for the unwary, or a stratagem to deny compensation to a veteran who has a valid claim but who may be unaware of the various forms of compensation available to him,” Mayer wrote. VA is legally required to tell veterans about every possible benefit and then help them do what’s necessary to receive those benefits. That “duty to assist” is particularly critical in cases such as Comer’s, where “a veteran is afflicted with a significant psychological disability.” Mayer said the government should not look at such cases as opportunities to win, “but rather that justice shall be done, that all veterans so entitled receive the benefits due them.” He went on to admonish the lower court for ignoring earlier rulings that CVAC and VA must treat veterans claims with sympathy and deference – even if a veteran doesn’t explicitly ask for such consideration. The circuit court also ruled the federal government cannot penalize veterans who have help from veterans service organizations. “Veterans service organizations provide invaluable assistance to claimants seeking to find their way through the labyrinthine corridors of the veterans adjudicatory system,” Mayer wrote. “To hold that a veteran forfeits his right to have his claim read sympathetically if he seeks assistance from a veterans service organization would be to discourage veterans from seeking the much-needed assistance that those organizations provide.” “This is the best victory I’ve ever had,” Messer says. She has a particular passion for helping veterans because her father served in Vietnam, and she knows firsthand the toll that war can exact on veterans. Comer’s case was remanded to the CVAC; it’s not clear when it will be fully resolved. “It’s part of the long, tedious delay that’s part of the appeals process,” Messer says. “If you see one of these cases from beginning to end, it’s heartbreaking.” Comer is surprised that his effort resulted in such a precedent-setting victory. “I didn’t set out to do that,” he says. “I just set out to get some help for the problem I had.” But he isn’t confident his ruling, which was being cited by judges just weeks after it was issued, will bring genuine change to the VA process. “The way the federal government works,” Comer observes, “they say one thing on paper and do something else.” The Never-Ending Backlog. The VA disability-claims backlog has grown steadily since 1996, as demand from aging Vietnam War veterans started to increase. Then, when servicemembers began coming home from Iraq and Afghanistan with complex injuries, the surge of new claims nearly sank the system. Absent significant changes, the disability claims backlog – which now threatens to top 1 million cases, according to some calculations – will consume even more of VA’s time and resources, leaving veterans languishing in the system until many quit in frustration or die before their claims are resolved. Indeed, two days after the 2008 election, the Government Accountability Office identified 13 “urgent issues” demanding attention from the new president and Congress, including “caring for servicemembers.” This requires strengthening health care for veterans and improving “the complex and cumbersome disability systems they must navigate,” GAO reported. While reforms are under way, the document noted these challenges “will require sustained attention, systematic oversight by DoD and VA and sufficient resources.” The federal government moved quickly to improve wounded-warrior care after the issue made national headlines in 2007, following the exposure of problems in an outpatient facility attached to Walter Reed Army Medical Center. Congress and the White House approved a 40-percent funding increase. Recovery coordinators were assigned to the most severely injured soldiers and their families. The handoff from DoD to VA has been improved. Both VA and DoD hired thousands of new disability benefits employees. “Ultimately, we believe when these individuals are hired and trained and fully productive, that really is going to make a big difference in our ability to work down the cases you would call backlog,” says Michael Walcoff, VA deputy undersecretary for benefits. Experts inside and outside the government say it will take far more than a bigger claims staff to resolve the problem. VA must improve training for claims staff and supervisors, and reduce the high turnover rate, says Steve Smithson, deputy director for The American Legion’s Veterans Affairs & Rehabilitation Division. VA also should track and analyze appeals and reversals in a way that would “ensure common errors and other discrepancies are not repeated.” In addition, Smithson says, VA needs to change its incentive system, which currently rewards workers for the number of cases they process, even if the results are inaccurate. “Managers, ratings specialists and Board of Veterans Appeals law judges and attorneys should be rewarded for prompt, careful work, and they should be penalized when they make bad decisions,” Smithson says. He doesn’t believe VA needs sweeping legislation or significant rule changes to get started. “An immediate reduction in the backlog could be accomplished by VA management encouraging VA raters to grant benefits where there is sufficient evidence in the record, rather than developing the record to support denial.” Bilmes, of the Harvard Kennedy School, believes the disability-claims backlog will persist as long as VA maintains its cumbersome process. “Despite the fact that study after study has shown virtually no fraud in veterans disability claims, the Department of Veterans Affairs compels returning war veterans to prepare a 23-page application with extensive documentation to verify even the most obvious disability, such as the loss of a leg,” Bilmes writes in her new book, “The People Factor,” co-authored with former IBM executive W. Scott Gould, a Navy veteran who now is a deputy VA secretary. Meanwhile, VA’s approach to dealing with the backlog is to hire a lot more government workers, “keep doing the same cumbersome, complicated system and change the average processing time from six months to five months. It’s thinking the problem through backward,” they write. Bilmes recommends adopting some of the best practices from the private insurance industry, which processes millions of claims every month with a far lower error rate. “The basic philosophy is, they are going to pass a claim through if it looks roughly right,” Bilmes says. “The trade-off is that they are not going to get everything perfectly right.” The VA approach now “basically says we don’t care how long it takes, we are going to get every nickel right, even if it takes a year to get a check to the veteran,” she says. “I think we need to shift the culture to assuming the vet is honest unless proven otherwise. That alone would help change this stigma many vets feel when they file for the benefits they are entitled to.” VA specialists should file the initial claims, just as specialists file claims with doctors and hospitals in the non-VA sector, Bilmes says. As it is now, veterans are left to decipher the complicated paperwork on their own. That move alone would save months of VA staff time spent reworking claims documents so the cases can be properly adjudicated. VA also should discard its practice of converting each veteran’s medical issues into a somewhat arbitrary disability rating of zero to 100 percent – a process that is done 57 different ways at VA’s 57 different regional offices, Bilmes says. Instead, veterans could receive less specific disability ratings: mild, moderate, severe, very severe – or not disabled at all. Congressional leaders believe VA Secretary Eric Shinseki has the skills and track record to help fix the problem. Step one, says U.S. Rep. Bob Filner, D-Calif., chairman of the House Veterans Affairs Committee: “You’ve got to show some quick and clear way you are bringing down the claims backlog.” His suggestion: grant all Agent Orange claims, and all claims prepared with the assistance of a veterans service officer. “We’ve got to get this backlog down. It’s just an insult to veterans.” Bilmes agrees. “I think we should once and for all approve these claims, then computerize the records and move on,” Bilmes says, rather than go through the lengthy process of computerizing records first. “Right now, there is so much focus at VA trying to deal with the enormously complex claims from new veterans that claims from existing veterans are getting lower priority.” Few people know the feeling of being a low priority better than Leroy Comer, who is still waiting for the final word on his case. He’s more philosophical than bitter, and doesn’t waste time wondering how his life would have been different if VA had granted his original claim. “The way they treated me built my resolve,” says Comer, who wrote many appeals from homeless shelters. “They pushed me aside. That caused me to stick with it more than anything else.” Ken Olsen is a freelance writer living in Oregon.

EPILOGUE: MAGAZINE SOURCE CALLED TO TESTIFY

With the number of veterans waiting for benefits nearing the 1 million mark, Congress and The American Legion are calling on VA to overhaul its disability claims system. “Some of these veterans have been waiting months, years and, in some mind-boggling cases, decades,” U.S. Rep. John Hall, D-N.Y., chairman of the Veterans Affairs Subcommittee on Disability Assistance, said as he opened an oversight hearing June 18. “Veterans cannot wait any longer. VA requires a cultural and management change that can only manifest if it embraces the very reason it was enacted in the first place: to serve veterans.” Ian de Planque, assistant director of The American Legion’s Veterans Affairs & Rehabilitation Division, told the subcommittee that VA needs to address high staff turnover, repeated careless errors and a work-credit system that rewards employees for the number of claims they process even if the job is done incorrectly. Gulf War veteran David Bohan, who has been featured in this American Legion Magazine series, told the committee, “So many of the people at VA are not veterans and don’t understand what we are going through. You end up feeling like some of them care more about their rules and regulations and paperwork than they care about the veterans.” VA denies its claim backlog is close to 1 million cases. Officials told the subcommittee that VA’s productivity has improved more than 9 percent per month as the number of claims has increased more than 13 percent.